We've written plenty about the case Smith v. Maryland, which established the dangerous Supreme Court precedent that there is no 4th Amendment expectation of privacy to be found in any data or information you give to a third party. Judge Richard Leon, back in December, ruled that the NSA surveillance efforts were so different from the situation in Smith (involving police getting dialing information on a single person from the phone company) that it wasn't an applicable precedent in the case in front of him, brought by Larry Klayman. That case is now being appealed.

In a new case, Smith v. Obama (assuming no relation to the "Smith" in the Maryland case), Judge Lynn Winmill, in the Idaho district court, has said that Judge Leon's ruling should be the model for a Supreme Court ruling overturning Smith v. Maryland. However, since no such ruling has taken place, she has to reject the claim in this case:

Judge Leon's decision should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.”

But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny Smith's motion for injunctive relief.

There's a bit more to the case overall, as it focuses on "location" data, and it's not entirely clear if the NSA is really collecting location data. However, as Judge Winmill notes, the Supreme Court's rulings in Jones suggest that the Supreme Court may be finally recognizing how outdated Smith v. Maryland is -- and it's good to see other judges recognizing this as well, even if they're constrained by existing precedent elsewhere.

There are some patents that make you question their very existence and others that seem to exist solely to provide the East Texas court system with work. Then there are others that seem destined to appear on television between the hours of 1-5 am, seeking to fill a void that doesn't actually exist and hawked by "spokespersons" whose ability to remain credulous in the face of utter ridiculousness is a prized their only virtue.

This patent has indeed been granted, but it's a design patent (in some ways, more similar to a trademark), rather than a utility patent, which means Reid, Jr. likely won't be trolling existing bottle/can-organizer manufacturers for infringing on his 6-holed miracle. Even if this seems to be a product no one actually needs, it is at least an improvement over his previous design, which seems to be targeted at consumers with unused, narrow spaces and more sodas/beer that can be safely placed out in the open.

The rectangular, 6-holed market may be (slightly) cornered, but the aspiring entrepreneur still has the 8-holes-and-above market to exploit as well as all manner of unused geometric shapes.

I'm not really going to spend much time badmouthing the USPTO as any design probably looks slightly useful if you squint at it for a few minutes. Furthermore, the patent office isn't the Shark Tank -- whether your product lives or dies is of no concern to examiners and they're not going to talk you out of making six-holed beverage "organizers" if that's what you'd like to be doing with your time. But all the same, there's nothing about this that elevates it above previous beverage organization technology, although the rounded corners are a nice touch.

We all know that China and their "Great Firewall" of censorship exist and we have a general idea of just how deep the censorship goes. We're also aware of the justifications that the Chinese government use for this censorship, including the notions that they're just protecting their innocent citizens from all the evil on the internet, as well as censorship committed by some of their antagonists (including the USA). But if you thought that this censorship was chiefly about pornography or current events, you're quite mistaken.

Take this fascinating piece about how China has attempted to disappear all reference to the 1989 incident in Tiananmen Square, which took place 25 years ago this week. The incident that culminated in hundreds of protesting students murdered on their own soil for the crime of wanting reforms within the communist government has been so thoroughly wiped from access that many young Chinese students aren't even aware it had ever happened.

In an example of George Orwell's "1984" dictum that "who controls the present controls the past", it reflects both the ruling Communist Party's immense power and its enduring sensitivity about its actions on June 3-4, 1989. A third of China's population today was born afterwards, while many of those alive at the time hesitate to broach the sensitive topic -- leaving a huge swathe of those under 25 ignorant of the event.

"I don't know what you are talking about," a 20-year-old student at Peking University, one of China's most prestigious, told AFP when asked about the protests, looking slightly embarrassed.

We're not just talking about the internet, of course. China heavily censors their news, print media, literature, movies and music as well. And, for all the talk about protecting their people from the ills of the outside world, one result of all this censoring is that young, educated Chinese citizens don't even know the history of their own nation. It's quite obvious, as it always has been, that censorship in China has much more to do with protecting the Chinese government than it ever had to do with protecting the citizens.

Not that the censorship is 100% effective, of course.

Web users find workarounds such as "May 35", "63 plus 1" or homonyms of banned words, though they too are eventually blacklisted.

"They are basically a mark of commemoration, like lighting up a candle somewhere even if no one understands what the reference is," said Jason Ng, a University of Toronto research fellow and author of "Blocked on Weibo".

This is a good thing, but almost besides the point. When censorship is so bad that a nation's own citizens don't even know that a major national event occurred merely twenty-five years previously, you see the real evil in censorship. Should this cause those of us that live in a climate with more liberty to try to push for liberty for our brothers and sisters in China? Sure. But even more than that, it should make us all the more vigilant against even the smallest encroachments on our own free speech rights, particularly any attacks on our newest communications tools, such as the internet. Otherwise, we, too, may find that our children won't know their own history.

A couple of months ago, we wrote about an important decision handed down by the European Union Court of Justice (EUCJ) that declared the EU's Data Retention Directive "invalid." As we noted then, it was not entirely clear what national governments would do about the legislation they had passed in order to implement that Directive. From the deafening silence that has followed, we can presume that most of them are still thinking hard, but the Danish government has announced it is repealing the law's excessive logging rules at least (Google Translate of original Danish press release from Ministry of Justice):

The Ministry of Justice considers overall that there is no basis for believing that the Danish logging rules would be contrary to the Charter [of Fundamental Rights]. But the ministry has doubts whether the rules on session logging is appropriate to achieve their purpose. Justice Karen Hækkerup repeal therefore now rules on session logging.

As that indicates, the Ministry of Justice does not consider that its own particular framing would fall foul of the EUCJ's ruling, but it does admit that it had doubts about whether the data retention logging rules were appropriate, and so is repealing them. Interestingly, that may not be the whole story here. According to the Danish Politiken newspaper, the real reason the government is choosing to strike down the rules is that it lacked the votes in parliament to stop that happening anyway. Here's what a spokesperson for the opposition Left party is reported as saying (Google Translate of original in Danish):

I am pleased that the Minister of Justice has recognized that the majority behind the unnecessary session logging has crumbled. We have announced that we do not want the session logging myth persists because there is no correlation between the degree of intervention, and how effective it is as an investigative agent.

It's great to see politicians beginning to recognize that simply "collecting it all" is neither proportionate nor effective. Here's what will happen now:

The Minister of Justice will in the next parliamentary session to submit a bill to revise the total logging rules that could form the basis for policy discussions with the political parties about logging rules future design.

Let's hope that the policy discussions will reflect what we have learned about the dangers of extreme surveillance in the last year -- and that other EU countries follow Denmark's example by repealing their laws and instituting broad-based consultations on what, if anything, should replace them.

Maybe if schools stop handing misbehaving students over to police officers, aggrieved parents won't be nearly as aggrieved... or so likely to sue. Schools are publicly funded already, but that's no reason to keep dipping into homeowners' wallets to pay out settlements for schools' bad decisions.

B.R.K., a 13 year-old student at Raleigh Hills in Beaverton, OR was suspended after his teacher found his drawing of a person being hanged. The subject matter is no doubt disturbing, although plenty of rounds of Hangman have been played at school without issue. Since the suit doesn't dispute the disciplinary actions the school took (a one-day suspension), I'll withhold an opinion on a drawing being an offense worthy of suspension.

The school chose to file the student's drawing under the ultimate vagary: Threats/Menacing/Hate Lists. But this policy specifically requires a "word" or "action," of which a drawing is neither and B.R.K.'s doodle would need to place another person in "fear of serious imminent injury." Whether or not this designation was justified is open to speculation.

But that's neither here nor there, at least according to the filing by B.R.K.'s father, Robert Bernard Keller. His allegations are of civil rights violations, all occurring after the suspension was served and B.R.K. was cleared to return to school.

The drawing incident began April 30th. His parents were notified and B.R.K. served his suspension. A school psychologist performed a "risk assessment" on B.R.K. and cleared him to return to school. His parents were present for this "risk assessment," in agreement to the mother's request that they be notified (and hopefully present) for any meetings/questioning stemming from this incident. All seemed well and good until B.R.K. related to his parents that, later in the day, he was pulled from class and interrogated by Beaverton police officers.

After the parents left, Raleigh Hills called in officers of the Beaverton Police Department to interview B.R.K. without notifying the parents. At no time before or during the interview were the parents notified by Raleigh Hills or the Beaverton Police. Only after the fact did the parents learn of the police interrogation. No criminal charge was filed nor was a petition filed with the department of human services. As a direct and foreseeable result of the events that transpired during this incident, B.R.K. has suffered emotional damages.

Keller alleges Fourth and Fourteenth Amendment violations, as well as emotional distress, false imprisonment and failure to supervise. Whether these will all hold up remains to be seen, but it would appear that Raleigh Hills violated its own policies by hosting an impromptu interrogation.

Early on in the school policy manual, the following is stated:

Unless an emergency situation exists relating to health or safety, the student shall receive prior notice of suspendable conduct as set forth herein and pursuant to District policy, specification of individual charges against the student, and an opportunity to present his/her view of the alleged misconduct. The suspending administrator may postpone these procedures if there is a risk that harm will occur if the suspension does not take place immediately. In all cases, an administrator will notify the parent/guardian by letter and, when possible, by telephone, and the procedure for reinstatement will be explained.

It would appear that parents are to be notified during every step of the process. For the most part, the school did this -- right up until it decided to bring the police in to "interview" a student whom its own psychologist had determined wasn't a threat and could return to general population.

Even if there's a little vagueness in the above statement, the school policy regarding the use of law enforcement is incredibly specific.

Referral to Law Enforcement

If it is necessary for law enforcement officers to interview, detain, or take into custody a student, the principal or his/her designee will follow regulations to insure compliance with Oregon Revised Statutes (ORS 162.245, 162.325). [The cited laws refer only to assisting law enforcement and not hindering prosecution. Neither have anything to do with the treatment of minors by law enforcement or rights retained by students.]

School personnel are responsible for cooperating with, and making it possible for, law enforcement officials to interview students on school premises. It is the responsibility of a law enforcement officer, who wishes to interrogate a student at school for law enforcement purposes, to contact that student’s parent or guardian in order to obtain advance authorization for the interview.

The district policy is even more definitive.

It is the responsibility of a law enforcement officer who wishes to interview a student at school for law enforcement purposes to contact that student's parent or guardian in order to obtain advance authorization for the interview. For this purpose, school personnel shall provide the telephone number of a student's parent or guardian to a requesting law enforcement officer…

There is an exception, but it doesn't fit this situation.

If the student's parent or guardian refuses to consent, the interview shall not take place unless the law enforcement officer represents that emergency or exigent circumstances justify an immediate interview. In such circumstances, before the interview occurs the law enforcement officer shall complete and sign a "No Consent/Interview Conducted Form," indicating that the parent or guardian refused to consent, and that emergency or exigent circumstances required an immediate interview of the student at the sole discretion of the law enforcement officer.

The Beaverton Police Dept. is also named in the suit. According to policy, the PD should have contacted the parents prior to this interview. Either way you look at it, someone should have talked to B.R.K.'s parents before putting the student in a room with police officers. The district's policy is just as narrow, stating there needs to be a form filled out stating the exigent circumstances that led to the consent-less interview. Keller's filing doesn't indicate he ever received this after-the-fact notification or, indeed, any awareness of this requirement.

Keller's allegations also state that the school has a "custom and policy" of seizing children from classrooms and "subjecting them to custodial police interrogations," so it would appear this isn't the first time Raleigh Hills has violated its own (and the district's) policies. The fact that police were involved after the student was cleared by staff gives this allegation credence. A school used to turning over nearly every discipline problem to local cops wouldn't think twice about bringing in law enforcement after the sentence has been served and the child interviewed by school staff.

If this ends up costing the school (Keller is asking for $100,000 in damages), it has no one to blame but itself. The policies are in place for exactly this reason -- to prevent the abuse of students' rights. But the school chose -- along with the Beaverton PD -- to violate its own policies, along with someone else's rights.

Exploring the vastness of space isn't cheap, but it's becoming more accessible as the cost of satellites comes down slowly and data from telescopes is shared widely and freely. Citizen scientists can help advance astronomy in a variety of ways, donating time and/or money to projects that need more help. NASA's budget isn't exactly huge (compared to other parts of the national budget), so space scientists need all the help they can get. Here are just a few links on the wisdom of the crowd contributing to space exploration.

Back in December of 2012, we wrote about (and agreed with) Julian Sanchez's suggestion that Google should do end-to-end encryption of emails, even if it (only slightly) mucked with its advertising business model. The impact on overall security would be great (and this was before the Snowden revelations had even come out). As Sanchez pointed out, not only would this (finally) drive more widespread adoption for email encryption, it would create enormous goodwill among privacy advocates. About six weeks ago, we mentioned this again, when it was rumored that Google was trying to make encrypted email easier, though it was said that it wouldn't go "site-wide" on end-to-end encryption.

A new blog post on the Google blog* has now detailed at least some of Google's plans, including offering a new End-to-End Chrome extension that will make it much easier for anyone to send and receive encrypted email messages. This is a big step forward, and hopefully shows how serious Google is about actually encrypting messages, rather than leaving them open for snooping.

This announcement came along with adding a new section to Google's famed transparency report, entirely focused on email encryption in transit, which will hopefully increase the use of Transport Layer Security (TLS) from other email providers out there. In the initial report, Google notes that 65% of outbound messages on Gmail to other providers use TLS, while 50% of inbound messages use TLS (over the last 30 days). And, more importantly, it highlights who supports TLS... and who doesn't (Comcast seems to be a shameful leader on that front). With some transparency, hopefully it will lead more email providers to adopting TLS.

* For the sake of full disclosure, the author of the blog post on Google's site is an old friend of mine, whom I've known for nearly 20 years (I feel old), since long before he worked at Google. I had no idea he was working on this and actually haven't spoken to him in probably a year or two (because life happens). I didn't find out about it from him, but from people talking about it on Twitter.

Samuel David Entertainment recently released "Flappy Bird: Remake," a game that appears to be a very slightly altered "Flappy Bird" clone. Despite it being an obvious knockoff, this message appears in the game's "Description."

Please note: 'Flappy Bird: Remake' is trademarked property of Samuel David Entertainment. All items, names, places and other aspects of the game are owned by Samuel David Entertainment.

Samuel David Entertainment is not affiliated or related to Dong Nguyen and the legacy Flappy Bird.

Should you have any enquiry regarding intellectual property issue please contact us at outlet.shopapp@gmail.com

First off, "Flappy Bird: Remake" is certainly not a registered trademarked, at least not in the US. Pending trademark applications for the original Flappy Bird -- filed by Dong Nguyen -- are currently pending in the US Patent and Trademark Office database. And while you don't need to register to have a valid trademark, it's difficult to see how "Flappy Bird: Remake" could even have a common law trademark. Either Nguyen is going to have the trademark or there won't be one. Secondly, it takes a special kind of person to copy someone else's game entirely and then try to prevent future cloning via a bit of peremptory legalese.

Samuel David couldn't even be bothered to use his own screenshot on the game's iTunes page.

You know, if you're just going to clone someone else's game, at least have the self-awareness to realize that trying to "protect" your "work" (especially with bogus claims) going forward just makes you look like an idiot, and a hugely disingenuous one at that.

I'm calling it here, right now. With all we've seen in the silly realm of moral panics on anything adults find new, be it tabletop role-playing games, video games, and, you know, chess, the horrifying story that is coming out of Wisconsin is going to end up in some media outlet somewhere decrying ghost stories on the internet and blaming them for this tragedy.

If you don't know what I'm talking about, two 12-year-old girls in Waukesha, Wisconsin, nearly stabbed their friend to death and left her in the woods, claiming that they wanted to become proxies for the Slender Man. If you aren't familiar with the story behind the Slender Man, "he" is the creation of Eric Knudsen, who edited some photographs as part of a submission to the Something Awful forums. In other words, he just made the whole thing up, which was the entire point. The whole point of the forum was to do photo-editing to create the appearance of something supernatural, and Knudson added to his edits some text that created a minor back story to the Slender Man. From there, the whole thing went viral and the legend has metastasized, in a manner of speaking. That brings us back to Waukesha and the original article about the attempted murder.

Prosecutors say two 12-year-old southeastern Wisconsin girls stabbed their 12-year-old friend nearly to death in the woods to please a mythological creature they learned about online. One of the girls told a detective they were trying to become "proxies" of Slender Man, a mythological demon-like character they learned about on creepypasta.wikia.com, a website about horror stories and legends. They planned to run away to the demon's forest mansion after the slaying, the complaint said.

You can already feel it, can't you? That incredible dismay in your being because you know that somehow this whole story is going to get spun into something on the internet causing two, otherwise-sweet twelve-year-olds to become knife-wielding maniacs? Yeah, that's probably going to happen. Here's the thing: it had better happen, because if the same media that is going to blurt out "Video games!" or "Violent movies!" any time we're faced with a tragedy, doesn't simply blame the medium rather than the perpetrators then they just aren't being consistent.

Me? Well, I'd rather build a reputation on being able to look at a couple of clearly disturbed young girls and calling them what they are rather than consistently looking for an out in the form of a media scapegoat, but then again I'm not the cable news networks. When little girls are talking about seeing myths in their dreams, being told by myths to do things, or myths threatening their families, the problem isn't with the myth or the medium on which the myth was delivered.

The aspect of the whole "right to be forgotten" business that's been occurring in Europe that most interests me isn't the legal wranglings or the plethora of unforeseen consequences that will inevitably rear its ugly head. Rather, I'm chiefly interested in the mentality that wanting such legislation suggests. That mentality appears to essentially amount to a request that chosen-actions that might end up being embarrassing should be subject to the whims of he or she that might be embarrassed. While this strikes me as immensely silly, it's not difficult to understand that the unprecedentedly long memory of the internet, as well as its inherent function as an easily-searched index, has made the consequences for embarrassing actions occur on a longer timeline than ever before. Pushing back against that change in the action-response scenario was probably inevitable, even if it's still wrong.

But it isn't just the internet that creates these kinds of scenarios. Digital photography presents a similar problem, with embarrassing images easily stored in perpetuity on hard drives and free from the wear and tear that old developed photos had to endure. And that's how we end up with a German court ruling that ex-lovers who had consented to being photographed nude and/or engaged in sexual activity must be deleted once the relationship ends.

The man, an unnamed photographer, had taken explicit photographs of his partner and made erotic videos with her throughout their relationship. The court heard the woman had consented to all of the material being taken and, in some cases, had taken the photographs herself. When their relationship ended, the woman insisted that all of the images and videos she appeared in be deleted.

The court agreed that any privately recorded nude pictures and footage which she appeared in should be deleted or withdrawn on the grounds of personal rights, which are considered higher than the ownership rights of the photographer, the Local has reported.

Let's wade around the legal weeds of German rights for a moment and break this down in laymen's terms. The court has ruled that actions previously agreed to are subject to the wants of that actor once a romantic relationship ends simply because they might embarrass said actor. One might have sympathy with the woman in this specific case, who didn't want her ex-lover to retain nude photos or videos of her in suggestive situations with him. But negating the responsibility for decisions made is going to open up a whole can of worms the court has no business involving itself in. In this case, they ruled that photos of the woman fully-clothed weren't subject to deletion, because they wouldn't "compromise" her. Great, except now define "fully-clothed", explain why the woman's feelings that her in a low-cut t-shirt isn't fully clothed, what ability the court has demonstrated to be a good arbiter of other people's feelings of being compromised, etc.

The point is that when the courts get involved in attempting to protect people from their own feelings, it's going to go wrong. Each and every time. Because the court shouldn't be in this kind of subjective debate. On top of that, alleviating citizens from the consequences of actions they consented to isn't the court's business either. Yes, it's possible that the man may use the photos in questionable ways, but let the court deal with those offenses rather than the vague possibility of an offense. This court instead said the ex had to delete the photos that are his to possess, simply because. Have fun with the resulting caseload, Germany.

Apparently, the UK government worked very hard to get the Guardian and others not to publish certain details about how GCHQ (and NSA) tap certain underwater cables that connect the internet around the globe, as it turns out that they get lots of help from BT and Vodafone Cable (via its purchase of Cable & Wireless). Those two companies apparently get paid handsomely for helping the government tap into these undersea cables. The Register decided it doesn't quite care how much the UK government doesn't want this stuff published, and went ahead and did so anyway:

British national telco BT, referred to within GCHQ and the American NSA under the ultra-classified codename “REMEDY”, and Vodafone Cable (which owns the former Cable & Wireless company, aka “GERONTIC”) are the two top earners of secret GCHQ payments running into tens of millions of pounds annually.

The actual locations of such codenamed “access points” into the worldwide cable backbone are classified 3 levels above Top Secret and labelled “Strap 3”. The true identities of the companies hidden behind codenames such as “REMEDY”, “GERONTIC”, “STREETCAR” or “PINNAGE” are classified one level below this, at “Strap 2”.

After these details were withheld, the government opted not to move against the Guardian newspaper last year for publishing above-top-secret information at the lower level designated “Strap 1”. This included details of the billion-pound interception storage system, Project TEMPORA, which were revealed in 2013 and which have triggered Parliamentary enquiries in Britain and Europe, and cases at the European Court of Human Rights. The Guardian was forced to destroy hard drives of leaked information to prevent political embarrassment over extensive commercial arrangements with these and other telecommunications companies who have secretly agreed to tap their own and their customers’ or partners’ overseas cables for the intelligence agency GCHQ. Intelligence chiefs also wished to conceal the identities of countries helping GCHQ and its US partner the NSA by sharing information or providing facilities.

There are also some details about how the UK government authorized the tapping in secret (of course), and suggests that the powers are exceptionally broad (because, of course they are):

Although GCHQ interception of overseas communications can be authorised by a general “external” tapping warrant, the wording of the law does not permit storage of every communication for examination, as GCHQ wished to do. In 2009, the spooks persuaded then Foreign Secretary David Miliband to sign a new warrant legalising what they wished to do. The terms of such warrants have never been published.

The special “external” warrants, issued under the Regulation of Investigatory Powers Act (RIPA), authorise the interception of all communications on specified international links. Miliband’s first 2009 warrant for TEMPORA authorised GCHQ to collect information about the “political intentions of foreign powers”, terrorism, proliferation, mercenaries and private military companies, and serious financial fraud.

Certificates attached to external interception warrants are re-issued every six months, and can be changed by ministers at will. GCHQ officials are then free to target anyone who is overseas or communicating from overseas without further checks or controls, if they think they fall within the terms of a current certificate.

The article also details how a special team at BT will help GCHQ figure out how to tap cables without others knowing about them:

The GCHQ-contracted companies also install optical fibre taps or “probes” into equipment belonging to other companies without their knowledge or consent.... Snowden’s leaks reveal that every time GCHQ wanted to tap a new international optical fibre cable, engineers from “REMEDY” (BT) would usually be called in to plan where the taps or “probe” would physically be connected to incoming optical fibre cables, and to agree how much BT should be paid.

Considering that The Register claims that not publishing this information is what kept the UK government from taking The Guardian to court, it will be interesting to see how they react to The Reg's decision to publish. The article also has a lot more details about the GCHQ using a top secret base in Oman to capture all of this undersea cable traffic as well, which I would imagine is a big part of what the government had hoped to keep secret. The stuff about the big telco and cable companies helping tap undersea fiber cables (and getting paid for it) doesn't seem particularly surprising at all. It's been known for years that AT&T has done that for the US government, so it's not clear why anyone felt the need to keep the equivalent so secret in the UK.

Either way, it seems like all of these efforts to keep certain aspects of these stories secret eventually fail. And the "top secret" stuff gets revealed one way or another eventually anyway. That doesn't mean that indiscriminate disclosure necessarily makes sense (though some of you will likely disagree), but it should make people realize that there needs to be very good reasons for keeping certain information secret, or it will almost certainly be disclosed eventually.

We followed the back and forth situation earlier this year, in which there were some legal questions over whether or not the NSA needed to hang onto surveillance data at issue in various lawsuits, or destroy it as per the laws concerning retention of data. Unfortunately, in the process, it became clear that the DOJ misled FISA court Judge Reggie Walton, withholding key information. In response, the DOJ apologized, insisting that it didn't think the data was relevant -- but also very strongly hinting that it used that opportunity to destroy a ton of evidence. However, this appeared to be just the latest in a long history of the NSA/DOJ willfully destroying evidence that was under a preservation order.

The key case where this evidence was destroyed was the EFF's long running Jewel v. NSA case, and the EFF has now told the court about the destruction of evidence, and asked the court to thus assume that the evidence proves, in fact, that EFF's clients were victims of unlawful surveillance. The DOJ/NSA have insisted that they thought that the EFF's lawsuit only covered programs issued under executive authority, rather than programs approved by the FISA Court, but the record in the case shows that the DOJ seems to be making this claim up.

EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF's 2008 case that challenges the government's mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001. EFF's brief notes that the government's own declarations make clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures.

"The court has issued a number of preservation orders over the years, but the government decided – without consent from the judge or even informing EFF – that those orders simply don't apply," said EFF Legal Director Cindy Cohn. "Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. But we are asking for a modest remedy: a ruling that we can assume the destroyed records would show that our plaintiffs were in fact surveilled by the government."

The full filing is worth reading as it highlights how ridiculous the DOJ's "oh we didn't think that stuff mattered to this case" argument really is. As EFF notes, all the way back in 2010, it had filed a brief that explicitly noted that they were challenging the use of exactly this kind of data.

The filing lists out the history of the government repeatedly destroying relevant information, despite the preservation orders from the court, and despite clear language noting that the government had to preserve exactly this kind of data. The DOJ's argument that it thought the data under FISA-approved programs didn't count seems especially weak, given that the DOJ itself was part of trying to hide that those programs even existed. As the EFF filing notes, the argument seems preposterous in context. For example, at one point, the DOJ claims that it thought EFF didn't mean FISC-approved programs because it talked about "warrantless" surveillance. However, as EFF notes, even FISC-approved programs are still warrantless, because a FISC order is not a warrant.

Even more damning for the DOJ, the EFF filing points out that in the DOJ's own attempts to kill this case under state secrets claims, it said that the activity had been approved by FISC. So, for all the talk about how it had no idea that EFF was interested in FISC-approved surveillance, that's clearly untrue or it wouldn't have invoked FISC as having approved the collection! After listing out numerous examples of government officials making official statements in the case talking about FISC approval and how revealing this would reveal FISC-related state secrets, EFF points out:

The Government cannot have it both ways, as it seeks to do here. It cannot present one understanding of the scope of plaintiffs' claims -- a very broad one -- when asserting state secret privilege, but claim a much narrower understanding when it is destroying evidence.

As EFF points out, when evidence like this is destroyed:

the law presumes that the destroyed evidence goes to the merits of the case, and the burden is on the spoliating party to show that no prejudice resulted." .... After having repeatedly and vociferously claimed that the plaintiffs must produce evidence from the government of individual seizure of their communications and records (as opposed to the boxes of their evidence plaintiffs have long presented), the government cannot meet its burden to show no prejudice has occurred here. Unsurprisingly, it has made no attempt to do so.

And now we wait to see how the DOJ tries to tap dance out of this one.

As the discussion over the EU's decision to force Google to uphold a "right to be forgotten" continues, various industry heads have begun to weigh in on the subject, pointing to this as evidence that Google could do more to combat piracy.

This, of course, is exactly the expected reaction. With every obliging move, search engines such as Google move themselves further and further away from providing "agnostic" search results. But what these entities are seeking goes much further than web forms. They still think Google should be able to de-list entire sites at the behest of any number of self-interested parties.

A recent article at the Guardian contains a number of recording industry leaders pointing in the direction of Google's "right to forget" compliance as an admission by the search engine giant that it has the power to (almost singlehandedly) kill off "pirate" sites. There's some confusion as to what Google actually does expressed here, although the worst of it seems to be relegated to the headline itself: "If Google can get rid of personal data, why can't it purge the pirates?"

The lede handles the subject much more accurately before the head of Britain's recording industry attempts to turn this into another reason why Google isn't doing enough to protect his interests.

Google's decision to allow users to easily de-list certain personal information from search results has infuriated a film and music industry that argues the internet giant should act as decisively to help squash digital piracy.

After laying down the facts, the rest is filled with badly drawn conclusions.

Critics say that Google drags its feet over carrying out measures such as stripping pirate websites from its search results, yet the move to allow users the "right to be forgotten" proves it can take serious action if it is forced.

"It's 'Don't be Evil' 101," says Geoff Taylor, chief executive of the music industry's trade body, the BPI. "The principle at stake here is when you know someone is acting illegally, you shouldn't continue helping them by sending them business."

There are several things wrong with Taylor's assertions. To begin with, Google "sends" no one any business. Google returns search results. Critics often claim that search results for content return tons of illicit results within the first few pages, but in order to make this happen, you have to include the sort of terms that someone looking to pirate might use. With enough intent, you can wring anything out of a search engine. This is not a problem that needs to be "solved" by the search engine.

The industry's own preferred referral services are, if anything, worse than the industry's skewed perception of Google's search results. As we pointed out a few weeks ago, the combined force of the UK's movie and television industry has resulted in a website that can't even locate legitimate purchase options for highly sought after content, while a simple search at Amazon will provide plenty of DVD and streaming options.

While critics may be right that Google can do certain things if "forced" to by government bodies, is this really the sort of goal they should be encouraged to pursue? Using the government to force one industry to cater to another industry's whims? The recording and motion picture industries seem to feel they should be able to de-list entire sites, something Google isn't allowing with its "right to forget" web form, just as it isn't allowing it with its DMCA takedown request form. Taylor feels this is wrong and that his industry should be allowed to de-list entire sites, including content that doesn't belong to anyone under its purview, simply by pushing a couple of buttons.

Geoff Taylor has more to add to this:

Dealing with Google is often a fraught process, Taylor adds, and the illegal websites reappear in the same, or a slightly different, guise almost immediately after they are taken down.

Presumably, Taylor means URL addresses. Once again, Google doesn't have the power (nor should it) to "take down" websites. Again, the URL is de-listed and won't appear in search results. In order for the content to be removed, a takedown request must be submitted to the site hosting the content. People like Taylor want to lay the problem at Google's feet simply because Google has given them one of the easiest and most user-friendly ways to submit takedown requests. Rather than make an effort, the industry wants Google -- a search engine -- to do the legwork for it. And now it wants entire sites de-listed.

"We have been calling for a long time for Google in particular to be more proactive in dealing with the issue of illegal content in its search results," says Taylor.

Google is not in the business of policing the internet for infringing content. That job belongs to the rights holders. How Taylor arrives at this misconception is beyond me, but he's far from the only industry head calling for Google to save them from problems they ignored for far too long.

How Taylor decides a new web form ("right to forget") signals greater capabilities than a pre-existing web form (the DMCA takedown) is also beyond me. Taylor is correct in his statement that Google's search algorithm is far from neutral, but he fails to acknowledge that it's been governments acting at the behest of industries that have made the most noise about the company's failure to rewrite the code to the specifications of the RIAA, MPAA et al.

And for all that noise, there's seemingly very little realization that pirates don't really use search engines for piracy.

Just 13% of illegal downloaders use search engines, including Google, to access music sites, and 8% for film sites, according to snapshot research by Ofcom.

So, even if the industry gets its way, there will be little noticeable effect.

But the bottom line is this: the new "right to be forgotten" form is roughly interchangeable with the DMCA takedown form. Neither remove content. Both only de-list URLs. The content still exists, but anyone using Google won't be able to find it... and that number represents only a small sliver of web users.

Somehow, these similar forms with similar results signal something much bigger to industry leaders like Geoff Taylor when, in fact, it should signal the exact opposite. Nothing has changed. Google will de-list specific URLs if given a legal reason to, whether it's a EU directive or its own compliance with the DMCA in order to retain its safe harbors. The belief that this means Google can (and should) de-list entire sites and further screw around with its algorithm in order to make the recording (and motion picture) industry happy is simply delusional.

Rep. Bob Latta achieved an impressive feat last week in introducing some legislation, which he claims is to make sure the internet remains "open and free." While we're big supporters of an "open and free" internet, what's most amazing here is that almost everything that Latta claims about the bill is not true -- including the whole "open and free" bits.

Congressman Bob Latta (R-OH) today introduced legislation to ensure the Internet remains open and free from government interference by limiting the Federal Communications Commission’s (FCC) authority to regulate broadband under Title II of the Communications Act.

So, first, he's saying "open and free" not in the way that internet users, innovators and entrepreneurs can set up businesses, but rather "open and free from government interference." This is, simply, bullshit. While I tend to lean on the "less regulation" side for many things, people claiming that net neutrality is a fight about "regulating the internet" are one (or more) of the following three things: (1) stupid (2) ignorant or (3) lying. The internet is already heavily regulated. The question around net neutrality is not "do we regulate or leave unregulated" -- it's what type of regulation makes the most sense.

Remember, telcos are happy to be classified under Title II for their fiber, because that's how they're able to get subsidized access to power poles and conduits (and the ability to dig up yards and bury new lines). They're also "regulated" in how they get spectrum for wireless communications. The broadband providers are thrilled to be regulated in these ways because it has made it easier and cheaper to build their networks and to keep out pesky competition.

The idea that broadband should be "open and free" from government interference is simply untrue. If the broadband providers really wanted that to be true, then they shouldn't be making use of rights of way access granted by the government. Somehow, I don't see Latta asking Verizon and AT&T to change that...

The legislation comes after the FCC released a proposal to reclassify broadband Internet access under Title II as a telecommunications service rather than an information service.

Except, of course, the FCC did no such thing. It, in fact, released a Notice of Proposed Rulemaking (NPRM) which explicitly does not propose to reclassify broadband under Title II. It actually proposes to keep broadband as it was, preferring to put in place new rules under Section 706. The only thing on Title II is that, while making it clear the FCC is focused on Section 706, it asks the public to comment on what it thinks of Title II as an alternative. To outright claim that the FCC has proposed reclassifying is blatantly false.

Isn't it great that Congressional Representatives flat out lie to the public?

“In light of the FCC initiating yet another attempt to regulate the Internet, upending long-standing precedent and imposing monopoly-era telephone rules and obligations on the 21st Century broadband marketplace, Congress must take action to put an end to this misguided regulatory proposal,” said Latta.

Except, again, the internet has always been regulated in some form, this request for comments has upended no long-standing precedent, and broadband providers have long made use of those very same "monopoly-era telephone rules and obligations" to get government subsidies to install their broadband infrastructure. Oh, and again, the proposal does not actually suggest what he claims it's suggesting.

So, both the reasons and the overall claim of the proposal are simply wrong. Who elected this guy?

“The Internet has remained open and continues to be a powerful engine fueling private enterprise, economic growth and innovation absent government interference and obstruction. My legislation will provide all participants in the Internet ecosystem the certainty they need to continue investing in broadband networks and services that have been fundamental for job creation, productivity and consumer choice.

Yes, the internet has remained mostly open and is a powerful engine of private enterprise at the service level by keeping the network level free from discrimination. And the FCC claims to be looking for a way to keep that in place, while the telcos who are supporting Latta's proposal are looking to do the exact opposite: to limit private enterprise by allowing the infrastructure players to discriminate against services they don't like. Latta's legislation does not provide "certainty" to anyone other than Verizon, AT&T and Comcast -- all of whom will get to double-charge and increase profits.

Instead, it will create massive uncertainty for basically every other business that uses the internet. It will devastate investment into internet startups, because those with great new ideas will know that they'll have to pay extra just to reach people online. It will entrench big companies who already have the power to pay, while cutting off upstarts and innovators. It will take away the incentives for the big broadband providers to actually invest in infrastructure, because when their networks get clogged, they can charge more to internet companies. That means, the US will fall even further behind on the internet.

It makes you wonder why Rep. Latta is so against small businesses and innovation.

Yes, we know that politicians mislead the public, but this is to an egregious level. Nearly everything about the reasons, the intent and the impact of Latta's legislation are completely incorrect. There are reasonable debates to be had about whether or not reclassifying broadband under Title II makes sense. But you won't get that from this bill. Thankfully, Latta can't find any other politician willing to co-sponsor his ridiculous bill, so it appears that even many other politicians heavily funded by the broadband companies recognize how totally dishonest this particular bill is.

You know how fads are. They just get boring so fast. Take violence, for instance. Blaming video games for real-world violence is so yesterday. We need a forward-thinker, some kind of super-genius who can bring us into a new era of blaming video games for something way more hip than just blowing stuff up. You know, a real bullshit artist of the highest caliber.

My hero! Yes, Glenn Beck, upstanding journalist of freedom and 'Merica, has decided to expound on the dangers of video games in a way so completely backward and ill-informed, it sort of makes you wonder how everyone in whatever studio compound he tapes this drivel in didn't drown out the sound mics in laughter. Should you be unable to view the video, or simply don't want to waste the time and brain cells doing so, here's the relevant part of this illogical rollercoaster.

We start off with Beck quoting the coroner in that dumb story I just wrote about, with his shoot-from-the-hip remarks on how Call of Duty somehow made four teenagers kill themselves. He actually quotes the coroner fully, which is sort of nice for me, but bad for him, since the coroner helpfully noted that he had no actual evidence for anything he was saying.

He then goes on to note that Breivik, the Norway killer who murdered 77 people, trained to do so on Call of Duty, and apparently just decides to take the psycho's word for it and assume that this video game is every bit the murder simulator a real-life assassin needs.

We start the Watch Dogs portion of this discussion with Beck wondering why we always need an anti-hero. He asks why we can't have a Superman in our entertainment. I mean, it's been almost an entire year since Man of Steel came out. What the hell, people?

And then Beck gets to the culmination of this stupid screed, holding up his iPad and informing his listeners that Watch Dogs is training children how to hack into his tablet while he sleeps next to it.

Whoo-boy. Okay, let me make this simple, since I've actually, you know, playedWatch Dogs: if the game teaches children how to hack people's tablets then someone is going to have to show me where the square-button is on my phone, because I can't find it. Hacking devices in the game is that simple. You push a button. Sometimes you actually have to solve a little navigation puzzle, too. That, I'm fairly certain, isn't hacking.

I've said this before: don't watch anything remotely resembling any cable news network or their talking mouthpieces. Beck isn't the only slinger of stupid out there and it's especially bad when it comes to video games. If people want to have a frank and open discussion on the impact of gaming on the lives of children and society as a whole, fine, let's do that. But the children have to shut up while we're having that discussion, because their wailing lies are getting in the way.

On Monday morning, we wrote about John Oliver's brilliant report on net neutrality, which ended with a stirring "call to action" for internet commenters to tell the FCC why it should preserve a free and open internet. If you somehow missed it, here's the clip again:

Many of our commenters noted that the FCC comment page that Oliver pointed to, FCC.gov/comments, appeared to be down for most of the day, either suggesting wonderful irony or that Oliver's call to action has been monumentally successful. The FCC has put up some tweets in which it apologizes for technical difficulties, without explaining why they were occurring beyond "heavy traffic."

We’ve been experiencing technical difficulties with our comment system due to heavy traffic. We’re working to resolve these issues quickly.

Either way, the irony of the FCC having trouble under heavy loads concerning net neutrality was not lost on many people, who didn't miss the opportunity to tweet some replies mocking the whole net neutrality proposal.

The concept of network effects, and the lock-in they produce, are both by now fairly well known. Most people understand why Microsoft retains its stranglehold on the desktop and word processing formats, despite the availability of equivalent free alternatives like GNU/Linux and LibreOffice, just as Facebook dominates the social networking sphere. A fascinating new paper by Ross Anderson, Professor of Security Engineering at Cambridge University, uses the idea of network effects and related areas to explore some of the deeper implications of Snowden's revelations about the modern world of surveillance (pdf).

Alongside network effects, Anderson notes two other factors, familiar from the world of technology, that are increasingly visible in the world of surveillance: low marginal costs and technical lock-in. First, the network effects:

The Snowden papers show that neutrals like Sweden and India are heavily involved in information sharing with the NSA, even though they have tried for years to pretend otherwise. A non-aligned country such as India used to be happy to buy warplanes from Russia; nowadays it still does, but it shares intelligence with the NSA rather then the FSB. If you have a choice of joining a big spy network like America's or a small one like Russia's then it's like choosing whether to write software for the PC or the Mac back in the 1990s. It may be partly an ideological choice, but the economics canoften be stronger than the ideology.

Here's how low marginal costs have revolutionized world politics:

Second, modern warfare, like the software industry, has seen the bulk of its costs turn from variable costs into fixed costs. In medieval times, warfare was almost entirely a matter of manpower, and society was organised appropriately; as well as rent or produce, tenants owed their feudal lord forty days' service in peacetime, and sixty days during a war. Barons held their land from the king in return for an oath of fealty, and a duty to provide a certain size of force on demand; priests and scholars paid a tax in lieu of service, so that a mercenary could be hired in their place. But advancing technology brought steady industrialisation. When the UK and the USA attacked Germany in 1944, we did not send millions of men to Europe, as in the first world war, but a combat force of a couple of hundred thousand troops -- though with thousands of tanks and backed by larger numbers of men in support roles in tens of thousands of aircraft and ships. Nowadays the transition from labour to capital has gone still further: to kill a foreign leader, we could get a drone fire a missile that costs $30,000. But that's backed by colossal investment -- the firms whose data are tapped by PRISM have a combined market capitalisation of over $1 trillion.

Finally, there's the technical lock-in:

First, there are lock-in effects in the underlying industries, where (for example) Cisco dominates the router market: those countries that have tried to build US-free information infrastructures (China) or even just government information infrastructures (Russia, Germany) find it's expensive. China went to the trouble of sponsoring an indigenous vendor, Huawei, but it's unclear how much separation that buys them because of the common code shared by router vendors: a vulnerability discovered in one firm's products may affect another. Thus the UK government lets BT buy Huawei routers for all but its network's most sensitive parts (the backbone and the lawful-intercept functions). Second, technical lock-in affects the equipment used by the intelligence agencies themselves, and is in fact promoted by the agencies via ETSI standards for functions such as lawful intercept.

The rest of the paper explores the implications of those factors. For example, Anderson notes that network effects lead to a surprising degree of technical integration between Western democracies and some of the less salubrious regimes around the world, notably through the export of spying technologies from the former to the latter. Another kind of integration is taking place between intelligence agencies and law enforcement:

It looks increasingly like law-enforcement and intelligence systems will merge into a single surveillance system, since the issue engages all of the three reasons that makes information markets different: there are strong network effects, there is technical lock-in growing from the fact that everyone’s using the same technology platforms and presenting warrants to the same service firms for the same data; and the back-end systems needed to aggregate, index, and analyse the product have high capital costs and very low marginal ones. Institutional arrangements are starting to reflect this; in addition to the FBI acting as the NSA’s funnel into Google and Microsoft, all UK police wiretaps are now done by the National Technical Assistance Centre, which is essentially a service window at GCHQ. There is indeed no point in making the taxpayer buy the same systems twice.

Despite these rather depressing observations and predictions, the paper does contain some upbeat thoughts. For example, Anderson emphasizes that network effects provide a good reason for the US to support a more principled kind of surveillance, in the knowledge that its current dominance will pass, and that it, too, will be subject to just the kind of spying that it currently inflicts on others:

If the barriers between nations that participate in the intelligence networks are not sustainable in the long term, and neither are the barriers between intelligence and law enforcement, then what's sauce for the goose will be sauce also for the gander. Policymakers should not delude themselves into believing that a temporary 'home field advantage', as NSA Director General Alexander put it, will last for ever, or even for the lifetime of most of us.

Anderson even manages to see hope that the experience of addressing the consequences of network effects in the world of surveillance may lead to broader gains in the future:

The regulation of surveillance might therefore be a useful early example of what governance could look like in a future networked world, and may in fact be one of the hardest such problems that we face. It contains elements of both fear and hope: fear that an apparatus of global surveillance might be captured by an oppressive successor empire, and hope that there might be no successor, but merely civilisation (whatever that means). This asymmetry may introduce the possibility of new approaches, and nudge realists from selfishness to more enlightened selfishness. As for liberal thinking, the lesson is that we don't just have to rely on international institutions; there are extremely powerful network effects in play, which will be a force for pacification and stability; we must work with them.

As that indicates, this is an extremely thoughtful and wide-ranging paper that draws together a number of big issues -- surveillance, privacy, governance, geopolitics etc. It's an important contribution to the debate initiated by the release of NSA and GCHQ documents by Edward Snowden, and anyone interested in what the longer-term implications of those revelations will be really ought to read it.

The American government has killed four Americans with drone strikes since 2009, all of which were completely detached from any notion of due process. At best, the DOJ builds a case against the foreign-located citizen and, if the target resides in a nation where the US can get away with utilizing weaponized drones, the American citizen is sentenced to death via push-button operator.

The administration has never released its legal justifications for the extrajudicial killing of American citizens. The DOJ has fought any demands for this document's release, but a recent decision by the Second Circuit Court of Appeals ordered the agency to release "key parts" of the secret memo.

The administration declared that it would honor the court's order and used the supposedly imminent release of the drone killing memo as leverage to push through its nomination for an appeals court seat. This nominee, David Barron, was a controversial pick due to his status as the principal author of the still-unseen drone memo.

One week after the Obama administration said it would comply with a federal appeals court ruling ordering it to make public portions of a Justice Department memo that signed off on the targeted killing of a United States citizen, the administration is now asking the court for permission to censor additional passages of the document.

Not only does the administration want to remove more information from the memo, but it apparently hoped it could do so in secret.

The Justice Department asked to keep its entire motion seeking additional redactions secret, but on Wednesday the court issued a five-page order denying that request and saying that as much of the motion as possible would have to be made public.

The order also recounted new details about several previous rounds of then-secret negotiations between the court and the government, dating back to February, over what would be redacted.

Some of the information the administration was hoping to redact is already public knowledge -- like the agency (CIA) that worked with the Defense Department to carry out the strike on Anwar al-Awlaki -- a killing that was carried out even though the DOJ had yet to complete its case against him.

The administration now has the judge it wants and a court order it doesn't. Judging by the hurry-up-and-wait treatment of the so-called "Torture Report" (which also involves the CIA), there's little reason to believe this document will be publicized any time soon, or with very much of it left intact. When it does finally make its way into the open, I'd be surprised if it contained anything more than the usual "terrorism renders most laws and civil liberties void" rationale.

Airplane designs have evolved quite a bit over the years. Some new planes might as well be alien spacecraft compared to the designs most people recognize. Outside of the super secret stealth aircraft, though, there are some interesting planes that are more fuel efficient and have strikingly different silhouettes. Here are just a few examples.

Ever since the infamous "six strikes" Copyright Alert System (CAS) was "voluntarily" agreed to (under threat that Congress would enact legislation) between some big ISPs and the MPAA/RIAA, people have pointed out that it was only a foot in the door, which would then likely be used in lawsuits either against the individuals or against ISPs. A year ago, we noted that prolific copyright troll Malibu Media had subpoenaed Verizon to try to get the six strikes data on someone it was suing, and now the company has done the same thing again with Comcast. While Malibu Media eventually dropped the request for info from Verizon, it seems likely that this type of request will become more common.

And it's yet another reason why the whole six strikes/CAS program is so troubling. It involves a list of accusations, not convictions, of copyright violations, where the person being accused has no real recourse (there is a limited right to appeal, which costs money and does not even allow you to make use of basic defenses, such as noting that a work is in the public domain). While defenders of the program didn't seem to think there was anything wrong with this sort of "guilty until proven innocent with limited defenses" setup, in part because it wasn't a court case, the fact that this data may now be used in court cases should be insulting to basic concepts of due process.